Thursday, February 9, 2012

The Birth Control Brouhaha

So I thought that I’d do one of my “thinking out loud” posts on the current controversy over the Obama administration’s decision to extend the requirement that employer provided health insurance cover birth control to religious affiliated employers (other than the religious institutions themselves). First a few clarifications to address actual (though incorrect) concerns that I’ve heard. The decision does not require anyone to use birth control (I actually heard someone complain that President Obama was forcing people to use birth control … seriously). It only requires that the health insurance provided by a person’s employer include birth control as a covered benefit. Nor does the requirement apply to churches, synagogues, mosques, other houses or worship or directly to religious institutions. Thus, a convent need not provide birth control coverage to the nuns in its cloisters and a church need not provide birth control coverage to those employed by the church in its ministerial functions.

Instead of thinking of a church, we should be thinking of such employers as religious-affiliated schools and hospitals (I’m not sure where a charity might fit in…). And, rather than thinking about management-level employees who may have the financial ability to acquire birth control on their own should they choose to, let’s think instead about the janitor or lunch lady or similar employees for whom the cost of birth control may be prohibitive if not covered by insurance.

At first blush, I do have some sympathy for the argument that the government should not be requiring religious institutions to use their resources to pay for healthcare costs associated with things that are directly contrary to the beliefs of that particular religion. In some ways, this reminds me a bit of efforts to require my Jewish children to say an overtly Christian prayer in school (remember the bill here in Indiana to require school children to say The Lord’s Prayer?). But then I realize that isn’t a very good analogy. First, the birth control requirement involves the expenditure of money by an organization; it has nothing to do with requiring religious conduct by an individual. Second, the birth control requirement is neutral on its face while the school prayer is motivated by a specific religious viewpoint in the first place. The fact that it is the same people who argue against the birth control requirement advocating for things like school prayer is worth noting, too.

And as I thought about that point, I came to another realization. One of the arguments that I keep hearing is that the government shouldn’t force religious organizations to spend money on something that the religion does not believe in. But you know what? Neither religious organizations nor religions themselves have beliefs. People do. And the fact that a particular person doesn’t necessarily believe in something, whether for religious reasons or otherwise, has never been a reason to exempt that person from a generally applicable requirement. For example, Catholics are (to my understanding) also opposed to the death penalty; yet income taxes from Catholics — and all others — are used to pay for executions. Numerous creeds believe in pacifism, yet their tax dollars are used to pay for military equipment and wars. I’m sure that some people, following their religious understandings, don’t believe in public education and may choose to home school their children; but they still pay taxes that go for public education of others. Orthodox Jews don’t drive on Saturday, but their taxes still pay to keep traffic lights working and police officers on the streets.

And why is the concern being raised limited to birth control? Where does the line of reasoning really end? For example, the Catholic church doesn’t believe in divorce, either (sorry to focus on the Catholic church, but that is where the controversy seems to be emanating from and it is the religion for which I feel that I have at least a small bit of knowledge from which I can draw examples). Could a Catholic hospital refuse to hire a man who is divorced? Could a Catholic high school fire a woman who gets divorced? Could a Jewish hospital refuse to hire a person with a tattoo (tattoos are prohibited by the Bible)? Could an Islamic school refuse to hire a woman who didn’t agree to wear a hijab outside of the school?

Or let’s try this one: Say that there is a new cancer drug that will eliminate prostate cancer. But the drug is made from a combination of shellfish and pork, both of which are forbidden by Judaism and Islam. Could a Jewish hospital or Islamic school refuse to pay for that drug for their respective employees because the ingredients violate the respective beliefs of Judaism and Islam? Or what about a hospital tied to a religious organization that forbids consumption of alcohol or tobacco (I’m not sure, but aren’t alcohol and tobacco prohibited by Mormon teaching?); could that hospital refuse to provide insurance coverage for smoking-induced lung cancer or for alcohol-induced kidney failure? And can a religious institution that is opposed to homosexuality refrain from including in its package of insurance benefits drugs to help with HIV/AIDS? Remember: The point isn’t whether the employee uses the birth control or takes my hypothetical drug or needs treatment from the use of “banned” substances or because of conduct deemed an “abomination”; whether to do so or not is that person’s choice and if it violates their religious beliefs, that is something that the person has to wrestle with. But how does that impact what the employer does (or chooses not to do)?

I guess what it comes down to for me is that it shouldn’t be up to the employer to decide which types of medical care its insurance will provide. One employee should not be treated differently than another with regard to available healthcare benefits solely because of the religious affiliation of their respective employers. The decision on whether to use birth control should be up to the individual; it shouldn’t be the decision of a religious-affiliated employer. The only person whose religious beliefs are impacted by the decision to use birth control (or not) is the individual; the religious-affiliated organization, as an organization and not an individual, doesn’t really have beliefs.

Or think of it this way (and, for the purpose of this thought exercise, let’s presume Catholic theology is true): If a Catholic hospital has to include coverage for birth control in the insurance that it provides to its non-Catholic employees (or even Catholic employees) — and remember that the Catholic hospital isn’t actually dispensing or selling the birth control; that would be done by the employee’s doctor or the pharmacy frequented by the employee — who will be going to Hell? The hospital or the employee?

And as to religious liberty, we have a long history of weighing that against the harm to others and against generally applicable laws. Thus, laws prohibiting the use of hallucinogenic drugs (peyote) as a part of religious worship have been upheld. And clearly I cannot, in the practice of my religious beliefs, do harm to you. The requirement that birth control be included does not prohibit any individual from making their own decisions of what conduct they personally will engage in or refrain from and whether or not to base that decision on religious beliefs. That is religious liberty.

In the end, it’s my view that the claim that to require religious-affiliated organizations to include birth control within the package of insurance benefits offered to employees is somehow infringing on religious liberty is simply wrong. We’re not requiring the religious institution to violate a belief (and remember my suggestion about the “beliefs” of organizations); we’re requiring the religious institution to follow the same rules that apply to other employers generally and we leave the decision of what beliefs to follow or not up to the individual.

9 Comments:

I think you're right on target. Think about all the different religious views on issues controlled by federal and state laws. Should Scientology businesses be exempt from making mental health benefits available to its employees ? Should businesses associated with Christian Science be exempt from all medical insurance ? The First Amendment is implicated if there is a clear interference with religion. Because this law does not require anybody to use contraceptives, and is neutral in application, there is no Constitutional issue.

Amen and Testify....no pun intended! According to several articles I have read regarding this issue, there are many Catholic Hospitals, charities and colleges that currently offer birth control coverage within their medical insurance benefit. Also, I do believe the last stat I read was that 98% of catholic women had at some point in their life used some form (barrier or medical) of birth control. This is not an issue the Catholic church is going to win. Women have fought long and hard to have bc covered by insurance, regardless of the type of employer. My first job out of college had full coverage for Viagra and voluntary abortions, yet some how bc wasn't covered. Irony at its best.

I heard last night that the Catholic Bishops have decided that excluding Catholic hospitals and universities isn't even good enough; now they want the exclusion to extend to any Catholic-owned business, too. Which to go to the point raised in the comment from Anonymous above (H.A.E., perhaps?) should also exempt a Scientologist-owned business from providing mental health benefits and Christian Scientist-owned business from providing any sort of medical insurance at all.

Like your "thinking out loud" approach. I'll add only a couple of my own thoughts.First, the largest Catholic-affiliated businesses (hospitals, universities) aren't funded by the Church and their services aren't provided free to consumers. Let's think about the person living where there is one hospital, Catholic-affiliated, within 50+ miles. Those arguing this business should be exempted from "paying" for birth control in insurance plans don't seem to understand that means many who pay for medical care at this one available hospital are required to financially support religious beliefs they don't share. Doesn't religious freedom extend to an individual not being required to give money to support any particular religion? If these businesses want to claim a religious expemption, shouldn't they rely on donations rather than tuition or invoicing bills for funding as the Church does?

Second, having said that, no employer pays for the benefits it offers. Benefits are part of an employee compensation plan paid for by those who pay for the services provided by the business. I find it odd that many who are incensed about this issue are the same ones who, in the next breath, will eagerly explain how the FICA portion my employer pays is really coming out of my paycheck and, worse yet, businesses don't really pay the taxes, customers do. The Church exemption makes sense because the Church relies on donations from those who purportedly share the same religious convictions.It doesn't make sense when the businesses provide service to and charges the general public irrespective of religious convictions.

I see this whole issue as an extention of too many political leaders and commentators espousing the new tenet that corporations are people when it comes to the Bill of Rights. As you said, in this case they've extended that to the Church as corporation regardless of the function being performed as employer. The most recent permutation that the Church is indirectly paying doesn't change the fact individuals directly paying are protected from being required to support any religious beliefs by the same Bill of Rights. Politicians, in particular, ought to know better than to take up the cause of any set of religious beliefs in crafting civil law affecting individuals. That goes to the heart of religious freedom.

Those arguing this business should be exempted from "paying" for birth control in insurance plans don't seem to understand that means many who pay for medical care at this one available hospital are required to financially support religious beliefs they don't share.Levitra

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